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tort law

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Introduction

Introduction. For this piece of work I will be examining the principles of duty of care using relevant case law examples. I will be discussing the consequences where there is a breach of that duty. I will also give a brief explanation of statutory liability and highlight some if the controls on exclusion clauses at common law and by legislation. Duty of Care. Duty of care is a legal obligation that is imposed on any individual but only when they adhere to a reasonable standard of care while performing any acts that could harm others. A duty of care must clearly be recognised in order to proceed with an action in negligence. The claimant must be able to articulate a duty of care imposed by law which the defendant has breached. Breaching a duty may subject an individual to liability in tort. Duty of care can be known as the responsibilities of an individual held towards another individual in society. Duty of care cannot really be defined by law; however it will often develop through the jurisprudence of common law. An example would be doctors. Doctors will be held reasonable standards for members of their profession, rather than those of the general public in cases related to them. In cases of landowners in common law, is the extent of their duty of care to those who came on their premises. ...read more.

Middle

The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question".(www.wikipedia.org/wiki/donoghue) Lord Atkin applied this neighbour test to the case that is where an established duty of care does not already exist, a person will own a duty of are not to injure those who it can be reasonably foreseen would be affected by their acts or omissions. The act of this case was to provide individuals with a remedy against suppliers of consumer products. In 1978 Lord Atkins' neighbour test was revised and applied Ann's v Merton London's Borough Council. From this developed the two stage test. Also known as 'Ann's test.' This two stage test requires; - a sufficient relationship of proximity based upon forseeability - And considerations of reasons why there should not be a duty of care. Then later on in 1990 Lord Atkins speech was referred to and applied in Caparo v Dickman. ...read more.

Conclusion

- The danger is one which it is reasonable to expect the occupier to protect against. This 1984 act offers less protection than the OLA 1957 act. Exclusion clauses. An exclusion clause is a term that seeks to limit the liability of one or of another party in a contract. It is acts that are used to defend parties for consequences of Breach of Contract and negligence. This is encase there is some problem with performance of the contract. The phrase 'limitation clause' is often used for a clause that limits, rather than excludes, liability. Certain conditions must be met for the exclusion clause to be enforceable; - It must be incorporated in the contract, - Its meaning must be clear - It must not be prevented by statute - The contract must remain intact that the clause still has some legal force. The defence of exclusion of liability is covered under s 2(1) of the occupier's liability act 1957. It states that ' an occupier of premises owes the same common duty of care to all his visitors except in so far as he is free to extend, restrict, modify or exclude his duty to any visitor or visitors.' This arises when the defendant has a sign up clearly stating that the person may enter the property, however at their own risk and if they were to substain injuries then they would not be able to recover damage they have suffered whilst on the land as there was a sign up telling them that it is at their own risk. ...read more.

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